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Peeples v. City of Detroit

United States District Court, E.D. Michigan, Southern Division

January 26, 2017

Erick Peeples, et al., Plaintiffs,
v.
City of Detroit, et al., Defendants.

          OPINION & ORDER

          Sean F. Cox United States District Court Judge

         Plaintiffs are eleven firefighters who were laid off by the City of Detroit during a reduction in force. Plaintiffs were recalled to work 80 days after being laid off and the Union successfully grieved their layoffs, securing a settlement under which the City agreed to a “make-whole” award of backpay for each Plaintiff. In this action, Plaintiffs assert a Title VII race discrimination claim against the City, and against their Union. Discovery closed and all discovery disputes have been resolved.

         The matter is before the Court on motions for summary judgment brought by the City and the Union. The motions have been fully briefed and none of the parties requested to file supplemental briefs, or to submit any additional evidence, after the parties resolved their discovery disputes.[1]

         The Court finds that oral argument would not aid the decisional process. See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. The Court therefore orders that the motions will be decided upon the briefs.

         For the reasons set forth below, the Court shall GRANT the motions for summary judgment filed by Defendants, but shall DENY their requests for sanctions.

         As to the City's Motion, the Court concludes that the only Plaintiff who has exhausted his administrative remedies such that he can pursue a Title VII claim against the City in this action is Rivera. Nevertheless, the Court shall address the City's remaining challenges as to all Plaintiffs. The Court concludes that Plaintiffs have failed to present direct evidence to support their claims. The Court also concludes that Plaintiffs' have failed to establish a prima facie case, under the circumstantial evidence approach, which includes a heightened burden in this reduction-in-force case.

         As to the Union's Motion, it shall be granted because Plaintiffs cannot establish that the Union breached its duty of fair representation to Plaintiffs, which Plaintiffs must do in order to proceed with a Title VII claim against a union in the Sixth Circuit. The Union's motion shall also be granted because Plaintiffs have been reinstated and made whole, and other types of damages claimed by Plaintiffs are unavailable as to the Union.

         BACKGROUND

         Plaintiffs filed this action on September 10, 2013. On October 29, 2013, this Court issued an “Order Of Removal Of Action As A Pending Matter” (D.E. No. 4) because of the bankruptcy stay pertaining to the City of Detroit.

         On August 13, 2014, the City of Detroit filed a notice indicating that the bankruptcy stay had been lifted. (D.E. No. 8).

         Plaintiffs' First Amended Complaint

         On May 11, 2015, Plaintiffs filed a one-count First Amended Complaint, which is the operative complaint. (D.E. No. 12).

         There are eleven individual Plaintiffs in this action: 1) Erick Peeples; 2) Perry Anderson; 3) Vincent Fields; 4) Arnold Freeman; 5) Ralph Glenn, Jr.; 6) Jamal Jennings; 7) Lee Jones; 8) Anthony McCloud; 9) Exander Poe; 10) David Rivera; and 11) Samuel Shack. Rivera is Hispanic and the remaining Plaintiffs are black.

         Each Plaintiff asserts a Title VII disparate-treatment race discrimination claim against Defendants City of Detroit (“the City”) and Detroit Fire Fighters Association, Local 344, IAFF, AFL-CIO (“the Union” or “DFFA”).

         Plaintiffs allege that the applicable CBA provides that layoffs shall be done in accordance with “Human Resources Department Rules XI and XIV which were in effect on July 1, 1977 . . .” (First Am. Compl. at ¶ 12).

         Plaintiffs alleges that those rules define seniority to mean “total city seniority” and that employees are to be laid off “in the inverse order of total city seniority.” The City denies those allegations as untrue. (First Am. Compl. and City's Answer at ¶ 13 & 14).

         Plaintiffs allege that after the City announced that layoffs would take place in the City of Detroit's Fire Department, the City sent out one or more lists of the employees to be laid off, which was according to total City seniority, and that Plaintiffs were not on the lists. (First Am. Compl. at ¶ 22).

         Plaintiffs allege that the Union objected to those layoffs, and “sent a letter to the City setting forth its objections, falsely claiming that the proposed lay-offs violated” the CBA. (First Am. Compl. at ¶ 23). They allege that the City and the Union held a meeting about the layoffs and that, after that meeting, the City “rescinded the original lay-off list and replaced it with a lay-off list that reduced several Black or Hispanic firefighters, ” including Plaintiffs, “who had more City seniority than Caucasian firefighters” who were not on that list. (First Am. Compl. at ¶ 25).

         The First Amended Complaint indicates that each of the Plaintiffs were recalled to work as firefighters on October 29, 2012. (First Am. Compl. at ¶¶). It states that, with the exception of one Plaintiff who took work as a firefighter elsewhere (Anderson), each of the Plaintiffs was reinstated, and grieved their layoff and had some backpay paid to them as part of the settlement of their grievance (Peeples, ¶ 33; Fields ¶ 73; Freeman ¶ 93; Glenn ¶ 113; Jennings ¶ 133; Jones ¶ 153; McCloud ¶ 173; Poe ¶ 193; Rivera ¶ 213; and Shack ¶ 233).

         Plaintiffs seek the following relief: 1) back pay and benefits lost due to the layoff; 2) compensatory damages; 3) punitive damages; and 4) attorney fees, and interest. (First Am. Compl., D.E. No. 12, at Pg ID 81).

         The Scheduling Order And Discovery Disputes

On March 1, 2016, this Court issued the Scheduling Order in this matter. The Court ordered, among other things, that discovery was to close on April 29, 2016.

         The parties filed several discovery motions, which this Court referred to the magistrate judge assigned to this case, beginning on January 28, 2016.

         On April 18, 2016, Counsel for the Union sent Plaintiffs' Counsel a letter asking Plaintiffs to dismiss the claims in this action against the Union. (D.E. No. 58-51). That letter set forth the Union's position as to why Plaintiffs cannot prevail in this action. Among other things, the Union's letter addressed damages, including the argument that Plaintiffs had been made whole in terms of backpay, and arguments as to why Plaintiffs cannot recover other types of damages they seek in this action.

         The City Filed A Motion For Summary Judgment Following The Close Of Discovery, Although Discovery Motions Were Still Pending Before The Magistrate Judge, But Thereafter This Court Resolved All Discovery Disputes.

         Following the close of discovery, the City filed a Motion for Summary Judgment (D.E. No. 54) and the Union filed its own Motion for Summary Judgment. (D.E. No. 56).

         After a hearing had been scheduled on the motions, and this Court began reviewing them, this Court realized that there were discovery motions still pending before the magistrate judge. This Court then issued an order adjourning the summary judgment hearing, pending rulings on the discovery motions before the magistrate judge. (See 9/28/16 Text-Only Notice).

         Thereafter, counsel for the parties requested that the Court hold a Status Conference to discuss the outstanding discovery motions, a September 22, 2016 order the magistrate judge had issued (that did not address the merits of the motion), and objections to same. At a October 11, 2016 Status Conference, this Court explored all of the outstanding discovery issues with the parties and they resolved all of their disputes. Thus, this Court issued an order on October 16, 2016, withdrawing the reference to the discovery motions filed as Docket Entry Numbers 43, 52, and 53, and set aside the magistrate judge's September 22, 2016 order. (D.E. No. 86).

         As discussed and agreed at the October 11, 2016 Status Conference, the Court rescheduled the summary judgment hearing for January 26, 2017, and the parties submitted a Stipulated Order wherein (D.E. No. 89) they stated that they had resolved all issues pertaining to the discovery motions.

         The Relevant Facts Set Forth In The Parties' Briefs

         This Court's practice guidelines, which are expressly included in the Scheduling Order issued in this case, provide, consistent with Fed.R.Civ.P. 56 (c) and (e), that:

a. The moving party's papers shall include a separate document entitled Statement of Material Facts Not in Dispute. The statement shall list in separately numbered paragraphs concise statements of each undisputed material fact, supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate document entitled Counter-Statement of Disputed Facts. The counter-statement shall list in separately numbered paragraphs following the order or the movant's statement, whether each of the facts asserted by the moving party is admitted or denied and shall also be supported by appropriate citations to the record. The Counter-Statement shall also include, in a separate section, a list of each issue of material fact as to which it is contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute shall be deemed admitted unless controverted in the Counter-Statement of Disputed Facts.

(D.E. No. 38 at 2-3).

         In compliance with this Court's guidelines, in support of its Motions for Summary Judgment, the City filed a “Statement of Material Facts Not In Dispute” (D.E. No. 55) (“the City's Stmt.”). In response to that submission, Plaintiffs filed a “Counter-Statement of Disputed Facts” (D.E. No. 70) (“Pl.'s Stmt. C”).

         In support of its Motion for Summary Judgment, the Union filed a “Statement of Material Facts Not In Dispute” (D.E. No. 57) (“the Union's Stmt.”). In response to that submission, Plaintiffs filed a “Counter-Statement of Disputed Facts” (D.E. No. 71) (“Pl.'s Stmt. U”).

         Plaintiffs' Counsel filed statements responding to both of the above statements by Defendants. However, Plaintiffs' Counsel certainly did not comply with either the letter or the spirit of the Court's guidelines, which are intended to narrow the facts that are truly in dispute. Throughout Plaintiffs' statements, Counsel includes, and continues to restate, unnecessary objections. Plaintiffs' Counsel also denies various factual statements, even though Plaintiffs' response indicates the statement is true. (See, e.g., Paragraph 4 of the Union's Stmt. and Pls.' Response to same; Paragraph 11 of the Union's Stmt. and Pls.' Response to same).

         In any event, the relevant facts, established by the record evidence submitted by the parties, are as follows.

         The Union, DFFA, is the certified collective bargaining agent for the uniformed firefighters of the City of Detroit Fire Department. (First Am. Compl., and City's Answer to same, at ¶ 5). At all pertinent times, the City and the Union were parties to a collective bargaining agreement (CBA). (Union's Stmt. and Pls.' Stmt. U at ¶ 3).

         Plaintiffs are eleven City firefighters and Union members that were affected by an August 2012 reduction in force. (Union's Stmt. and Pls.' Stmt. U at ¶ 4). Rivera is Hispanic and the remaining ten Plaintiffs are black. (Union's Stmt. and Pls.' Stmt. U at ¶ 5 & 6).

         On June 20, 2012, the City notified the Union of an impending reduction in force. (City's Stmt. & Pls.' Stmt. C at ¶ 2). This was the first RIF in the Detroit Fire Department (“DFD”) since 2005. (Union's Stmt. and Pls.' Stmt. U at ¶ 11).

         On June 20, 2012, the City sent the Union a letter that stated, in pertinent part:

In compliance with required notification and in an effort to keep you apprised of reductions to your labor union, please see the attached list of position reductions. As a result of these reductions, layoffs are anticipated. We anticipate that the last day of work will be no later than July 20, 2012. Layoff notices shall be issued in accordance with your Collective Bargaining Agreement.

(Ex. 3 to City's Br.).

         In a letter dated June 29, 2012, the City notified the Union that City of Detroit Fire Department “is reducing the number of DFFA positions by two-hundred and eighty-seven (287)” and that “these reductions will result in actual layoffs of 164 positions.” (Ex. 4 to City's Br.). An August 2, 2012 Official Bulletin from the Office of the Fire Commissioner, however, advised that “[d]ue to retirements and demotions of personnel in the Fire Fighting Division, the number of layoffs has dropped” to “28 lay offs.” (Ex. 5 to City's Br.).

         The City announced that it would use City-Seniority, i.e., total City years of service regardless of City departments, to determine the DFD layoff order. (Union's Stmt. and Pls.' Stmt. U at ¶ 13).

         On July 30, 2012, the City gave the DFFA a RIF “matrix” or listing to show the intended RIF employment actions, including demotions, transfers, and layoffs. (Union's Ex. 11). That matrix listed 29 firefighters who would be laid off, but did not include Plaintiffs as layoff candidates. (Id.; Union's Stmt. and Pls.' Stmt. U at ¶ 16). The matrix submitted to the Court does not identify the races/nationalities of those who would be laid off, demoted, or transferred.

         Thereafter, in a letter sent on July 30, 2012, the DFFA urged the City to use Department-Seniority, ie., seniority only within the DFD, to determine layoff order. (Union's Ex. 12; (Union's Stmt. and Pls.' Stmt. U at ¶ 18). That letter stated that the lists created by the City violate the CBA by not using Department Seniority. The letter included DFFA-created lists that applied Departmental-Seniority, rather than City-Seniority, to the City-forcasted employment actions. Those lists included Plaintiffs as candidates for layoffs. (Id.).

         On July 31, 2012, the DFFA filed a “Class Action Grievance #17-12, Violation of Reduction in Force” (Union's Ex. 14). That grievance vaguely asserted that the City was violating the CBA in how it was laying employees off and asked the City to cease and desist from violating the CBA and “restore all members affected by illegal layoffs and demotions.” (Id.). That grievance was “filed before anyone was actually laid off.” (Pls.' Stmt. U at ¶ 22).

         On August 2, 2012, the Union sued in Wayne County Circuit Court to enjoin the closing of fire houses. (Pls.' Stmt. U at ¶ 24). At around that same time, the City and the Union met again to review the projected RIF. (Pls.' Stmt. U at ¶ U 25).

         On August 10, 2012, the City laid off Plaintiffs and 16 other firefighters, a total of 27 layoffs. (Pls.' Stmt. U at ¶ 28; Union's Exhibit 18). The layoff notices to those laid off indicated the reason for the layoff was lack of funds. (Id.). The layoff notices do not identify the races/nationalities of those laid off.

         Thereafter, on August 14, 2016, the Union wrote a letter to each firefighter who was laid off, including Plaintiffs, stating that the Union was doing everything it could do to hasten their return. (Pls.' Stmt. U at ¶ 33; Union's Ex. 24).

         In August and September of 2012, Plaintiffs and Union officers met several times. (Pls.' Stmt. U at ¶ 35). In those meetings, some Plaintiffs' challenged the Union's reliance on department-seniority and indicated they wished to file grievances regarding their layoffs. (Id; Union's Exs. 25 & 26). Plaintiffs and Union officers discussed the issue of how the layoffs were supposed to be made under the CBA and rules. Union officers stated that they were working on getting answers to the issue. (Id.).

         There were disagreements between Union executive board members with respect to the applicable seniority rules and the Union ultimately sought legal advice from counsel on the issue. (Union's Stmt. at ¶ 52-53)

         On September 18, 2012, the Union's attorney sent the Union a non-confidential opinion letter regarding seniority (‘the Seniority Opinion Letter”), wherein counsel stated “we believe that ‘total City seniority' is the contractually-required metric for determining the order of layoffs and demotions attributable to a reduction in force, and no ‘past practice' Invalidates this clear procedure.” (Union's Stmt. at ¶ 58; Union's Ex. 33)

         The Union claims that it gave the Seniority Opinion Letter to Plaintiffs immediately after receiving it. (Union's Stmt. at 62). Plaintiffs assert that it is unclear whether all Plaintiffs received the letter, and claim it is unclear as to the timing of when the letter was distributed to Plaintiffs. (Pls.' Stmt. U at 62).

         Plaintiff Shack testified that the Union told him and other Plaintiffs that they had checked and been told that the Plaintiff's position about seniority was right, and that they would work to fix the problem, around September 18, 2012, the day the Seniority Opinion Letter was received by the Union. (Shack Dep. at 171).

         In any event, the Union advised its membership of its changed position within days of having received the Seniority Opinion Letter. The meeting minutes for the Union's September 24th and 25th regular general membership meetings reflect that:

DEMOTIONS/LAYOFFS: President McNamara explained how and why demotions and layoffs were decided and implemented by the city. He further explained how the DFFA, without the contractually obligated lists that were to be provided, wrote a letter stating that layoffs were to be decided by departmental seniority.
He went on to state this is incorrect and total city seniority is to be used in determining layoffs and apologized to the membership. The DFFA will argue that fact in grievance #17-12.
President McNamara further reports the DFFA requested/received a legal opinion regarding the interpretation of language for demotion/layoffs. The attorney advised that total city seniority is the primary basis for reductions in force, demotion and recall.
It is the DFD's and the DFFA's opinion that human resources did neither of what was mentioned, but incorrectly applied a “3 year rule” to layoffs. This rule only applies to demotions. We ...

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